March 25 Symposium: Qualified Immunity in Courts and in Practice

New Issue: Volume 111, Issue 1

Inviting Submissions to JCLC Online, Our New Feature

The Corporate Insanity Defense

By: Mihailis E. Diamantis | March 1, 2021

Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where sanctions would not deter. Punishing such corporations undermines the goals of criminal law, leaves victim interests unaddressed, and is unfair to corporate stakeholders.

This Article argues that some corporate criminal defendants should be able to raise the insanity defense. Statutory text makes the insanity defense available to all qualifying defendants. When a corporate criminal defendant’s mind is sufficiently disordered, basic criminal law purposes also support the defense. Corporate crime in these cases may trace to dysfunctional systems or subversive third parties rather than to corporate malice. For example, individual corporate employees may thwart well-meaning corporate policies to pursue personal advantage at the expense of the corporation itself. Corporations then may seem more like victims of their own misconduct rather than perpetrators of it.

Justice and prevention favor treatment of insane corporations rather than punishment. Recognizing the corporate insanity defense would better serve victims’ and stakeholders’ interests in condemning and preventing corporate misconduct. Treatment would create an opportunity for government experts to reform dysfunctional corporations in a way that predominant modes of corporate punishment cannot. Effective reform takes victims seriously by minimizing the chance that others will be harmed. It also spares corporate stakeholders unnecessary punishment for corporate misconduct that could be sanctioned in more constructive ways.

Unshackling Plea Bargaining from Racial Bias

By: Elayne E. Greenberg | March 1, 2021

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial bias that exists against African American male defendants will taint the negotiation process and justice outcomes. The racial profiling by the police, the presumption of guilt rather than innocence for African American men, the prosecutor’s discretion when charging the defendant, and the justice negotiation’s speed all contribute to the harsher negotiated sentences that African American male defendants receive compared to white male defendants accused of similar crimes. These racially tainted outcomes threaten the integrity of our justice system, and the core of our democracy.

This Article traces the origins of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: slavery, the criminal justice system, and plea bargaining. The Article then explains how plea bargaining’s structure, as it exists today, allows these historical racial biases to manifest and fester. Culling from the research of cognitive psychologists, dispute system design scholars, and anti-racism educators, this Article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.

Criminalizing China

By: Margaret K. Lewis | March 1, 2021

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.

People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.

This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that possess “China-ness,” based on PRC nationality, PRC national origin, Chinese ethnicity, or other expressions of connections with “China.” The Article further contends that, when assessed in light of the goals of deterrence, incapacitation, rehabilitation, and retribution, it is worrisome that the prosecution and punishment of people and entities rests in part on a connection with “China.” A better path is to discard the “China Initiative” framing, focus on cases’ individual characteristics, and enhance the Department of Justice’s interactions with nongovernmental experts.